[{"@context":"https:\/\/schema.org\/","@type":"BlogPosting","@id":"https:\/\/www.grossmcginley.com\/resources\/blog\/admissibility-of-informed-consent-evidence\/#BlogPosting","mainEntityOfPage":"https:\/\/www.grossmcginley.com\/resources\/blog\/admissibility-of-informed-consent-evidence\/","headline":"Admissibility of Informed Consent Evidence","name":"Admissibility of Informed Consent Evidence","description":"An issue that often arises in medical malpractice cases is the admissibility of evidence related to a […]","datePublished":"2018-10-10","dateModified":"2021-09-20","author":{"@type":"Person","@id":"https:\/\/www.grossmcginley.com\/resources\/author\/jlw\/#Person","name":"Jennifer L. Weed","url":"https:\/\/www.grossmcginley.com\/resources\/author\/jlw\/","identifier":37,"image":{"@type":"ImageObject","@id":"https:\/\/secure.gravatar.com\/avatar\/4a94ee97ce4ebeb86eb75de61fd173b2?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4a94ee97ce4ebeb86eb75de61fd173b2?s=96&d=mm&r=g","height":96,"width":96}},"publisher":{"@type":"Organization","name":"Gross McGinley, LLP","logo":{"@type":"ImageObject","@id":"https:\/\/www.grossmcginley.com\/wp-content\/uploads\/2017\/10\/logopng-00436945-e1531508982151.png","url":"https:\/\/www.grossmcginley.com\/wp-content\/uploads\/2017\/10\/logopng-00436945-e1531508982151.png","width":600,"height":60}},"image":{"@type":"ImageObject","@id":"https:\/\/www.grossmcginley.com\/wp-content\/uploads\/2018\/10\/informed-consent.jpg","url":"https:\/\/www.grossmcginley.com\/wp-content\/uploads\/2018\/10\/informed-consent.jpg","height":800,"width":800},"url":"https:\/\/www.grossmcginley.com\/resources\/blog\/admissibility-of-informed-consent-evidence\/","about":["Blog"],"wordCount":467,"keywords":["Litigation","Medical Malpractice Defense"],"articleBody":"An issue that often arises in medical malpractice cases is the admissibility of evidence related to a plaintiff\u2019s informed consent when there is no specific informed consent claim in the Complaint. The Pennsylvania Supreme Court, in Mitchell v. Shikora, D.O.,\u00a0 recently indicated that it would weigh in on this issue when it granted the Petition for Allowance of Appeal by the defendant-surgeon on the following question:\u00a0 \u201cWhether the Superior Court\u2019s holding directly conflicts with this Honorable Court\u2019s holdings in Brady v. Urbas, 631 Pa. 329, 111 A.3d 1155 (2015), which permits evidence of general risks and complications in a medical negligence claim?\u201dBy way of background, in Brady, the Pennsylvania Supreme Court rejected a bright-line rule excluding informed-consent information in a medical negligence case when it held: \u201cAccordingly, we decline to endorse the Superior Court\u2019s broad pronouncement to the degree that it may be construed to hold that all aspects of informed-consent information are always \u2018irrelevant in a medical malpractice case.\u2019\u201dThe Brady court stated:Evidence about the risks of surgical procedures, in the form of either testimony or a list of such risks as they appear on an informed-consent sheet, may also be relevant in establishing the standard of care.\u00a0 Id. at 1161-62 (citing Hayes v. Camel, 927 A.2d 880, 890 (Conn. 2007) (acknowledging the potential relevance of\u00a0 such enumerated risks in establishing the standard of care and stating that evidence of the same may be introduced so long as it is not admitted in the context of communications with the plaintiff).\u00a0 In this regard, we note that the threshold for relevance is low due to the liberal \u201cany tendency\u201d prerequisite.\u00a0 Pa.R.E. 401 (emphasis added).Subsequent to the Brady decision, the Superior Court in Mitchell\u00a0considered whether evidence related to the general risks and complications of a laparoscopic hysterectomy was admissible at trial when the plaintiff did not raise an informed consent claim against the defendant-surgeon.\u00a0 The Superior Court held that the evidence was inadmissible, reasoning \u201csuch evidence was irrelevant in determining whether [the defendant-surgeon] acted within the applicable standard of care.\u201d\u00a0\u00a0In Mitchell, the plaintiff had suffered a bowel perforation, which was one of the recognized risks and complications of the laparoscopic hysterectomy.The fact that the Supreme Court granted the defendant-surgeon\u2019s petition on the one issue enumerated above indicates that it may disagree with the Superior Court\u2019s interpretation of Brady that precludes informed consent evidence in all cases where informed consent is not alleged. For those of us defending hospitals and physicians in medical malpractice cases, this appeal could assist in allowing general risks and complications evidence as relevant to the standard of care. Stay tuned!Attorney Jennifer L. Weed supports the firm’s Medical Malpractice Defense Group, representing hospitals and health networks as well as individual physicians in claims regarding their care."},{"@context":"https:\/\/schema.org\/","@type":"BreadcrumbList","itemListElement":[{"@type":"ListItem","position":1,"name":"Resources","item":"https:\/\/www.grossmcginley.com\/resources\/#breadcrumbitem"},{"@type":"ListItem","position":2,"name":"Blog","item":"https:\/\/www.grossmcginley.com\/resources\/\/blog\/#breadcrumbitem"},{"@type":"ListItem","position":3,"name":"Admissibility of Informed Consent Evidence","item":"https:\/\/www.grossmcginley.com\/resources\/blog\/admissibility-of-informed-consent-evidence\/#breadcrumbitem"}]}]